Introduction:

Seniors without rights

On October 1st Sri Lankans following the rest of the world celebrated yet another World Elders’ Day. The main celebrations were jointly held by National Council of Elders and Helpage International at the BMICH with participation of ministerial dignitaries.

International days have been identified by the UN to refocus world’s attention on social justice subjects and it was appropriate that Sri Lanka too support the UN efforts rather than perpetuating insular splendid isolation. LAC Centers islandwide conducted Elders’ Day programmes.

In South Asia, Sri Lanka is the fastest aging country. Our seniors (over sixty years age) form 2.5 million of our population. Every day 600 citizens become elders legally under Protection of Elders’ Rights Law No.9 of 2000 by crossing 60 years of age.

While the proportion of youth in our society is dwindling, the seniors keep increasing due to developments in health care, education and lowering mortality rates. Our average life expectancy has increased to 75 years.

The senior Sri Lankans have become an important cohort of Sri Lankan society. Elders’ Law is seen as a pioneer in elders’ protection legislation by South Asia. As it is customary in Sri Lanka’s process of law implementation,the reform of the law has been very slow. Elders have less time to wait for authorities to implement some of the lofty ideas included in Law No.9 of 2000.

Firstly, the Elders’ Law is poorly crafted. This is despite the law receiving support of all parties in Parliament. The law creates National Council of Elders (NCE) under the virtual control of the senior officials of the Ministry of Social Services and Social Welfare.

Consequently, NCE has become a glorified Government Department functioning with less efficiency as any other Government. There are no full timer senior officials or sufficient representation of the private sector.

One year ago, the Council proposed amendments to rectify this anomaly and was approved by cabinet in April 2007. But the proposals are still in the drafting box.

The thrust of amendments were to take senior citizens out of the charity or social welfare agenda and empower them by making them independent and part and parcel of the development agenda.

Present day seniors are comparatively healthier and should share their life experience with the younger generation. The law should be adjusted to suit this modern development objective. We should learn from countries like Japan and Singapore where the senior challenges have been harnessed for development.

The Elders’ Law has not recognised the right of the elders to be protected from elderly abuse. We can cite innumerable cases of elders who have come for help to the Legal Aid Commission, sometimes after been subjected to cruel treatment by their own children on whom the Elders’ Law has cast the responsibility to look after elderly parent. In the modern economy these concepts need review.

The elders are issued an Elders’ Identity Card for past ten years to facilitate care and consideration public institution in their golden years. But this card is not recognized in the Elders’ Law.

Hence many elders are mistreated in public institutions like hospitals, public transport or shops and pharmacies. There is no national awareness that the seniors who may be physically frail should be given compassionate consideration. No one cares.

One good thing that has happened after 2000 Law is the establishment of some 7500 Elders’ Societies in the villages. The elders are weak because they are not organized to protect their aging rights.

In USA, senior power is represented by the American Association of Retired Persons (AARP) with 32 million members. No American political leader dares to ignore the senior power.

The Elders’ Societies in Sri Lanka should network to protect their rights and dignity. Blossoming of any other senior citizens’ organizations is welcome. But they should not become tools in the political divide.

S.S. Wijeratne

Questions and Answers

Is Central Bank governed by the Monetary Board?

Question: I understand that the Central Bank of Sri Lanka is governed by the Monetary Board. Is this correct? If so kindly let me know the powers vested with the Monetary Board and who are the members of the said Board.

Your early reply would be kindly solicited.

- M. Kotalawala, Kotikawatta

Answer: The answer is ‘yes’. The Central Bank is governed by the Monetary Board.

In terms of the Monetary Law Act, the corporate status is conferred on the Monetary Board, which is vested with all powers, functions and duties. As the governing body, the Monetary Board is responsible for making all policy decisions related to the management, operation and administration of the Central Bank. The Monetary Board of the Central Bank consists of five (5) members -

* The Governor

* The Secretary to the Ministry of Finance (ex-officio)

* Three (3) non-executive members.

The Governor is the Chairman of the Monetary Board and also functions as the Chief Executive Officer of the Central Bank. The Governor and the non-executive Board members are appointed by the President, on the recommendations of the Minister of Finance.

The approval of the Constitutional Council is also required for the appointment of the non-executive Board members. The term of office of the Governor and the non-executive Board members is six (6) years.

The quorum for Monetary Board meetings is three (3) members. The concurrence of three (3) members is required for decisions of the Monetary Board to be valid. However in cases where a unanimous decision is required, the concurrence of all five (5) members is necessary.

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Can ETF be withdrawn before reaching the age of 55?

Question: I am an executive in a leading company in Colombo. I am aware that I can claim EPF on reaching the age of 55. I am now 40 years old. I am told that ETF can be withdrawn before reaching the age of 55. Please advise me in this regard.

- A. Perera, Kelaniya

Answer: ETF claim can be made as follows:

i. On termination of employment.

ii. An employee is not entitled to withdraw monies more than once in a period of five years.

iii. The five year rule does not apply when employment is terminated due to disablement arising out of an accident and also when a member is over 60 years of age.

iv. On the death of an employee the money will be paid to the nominee and if there is no nominee to the next of kin.

v. When proof is shown to state that she is leaving Sri Lanka with the intention of his returning to Sri Lanka or for permanent residence abroad.

vi. When an employee takes up pensionable employment in -

(a) Public Service

(b) Local Government Service

(c) District Service.

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Can payment of gratuity be made for interrupted service?

Question: I was employed in the capacity of a Production Manager in a garment factory in the IPZ for four years from 1992 to 1996. I resigned in December 1996 to go abroad. I returned to the island in April 1997 and joined the same company as Production Manager. I am now intending to migrate to Australia in December 2007.

Please advise me whether I could take the four years of employment from 1992 to 1996 for the purpose of computing the gratuity under the Payment of Gratuity Act No. 12 of 1983?

- D. Chickera, Battaramulla

Answer: The answer to the question is ‘No’. The word ‘completed service’ has been defined in the Act to mean - ‘uninterrupted service and includes service which is interrupted by approved leave on any grounds whatsoever, a strike or lock out or cessation of work not due to any fault of the workman concerned whether such uninterrupted on interrupted service was rendered before or after the coming into operation of the Act.”

Since there is an interruption in your employment, you will not be able to include the first four years of employment for the purpose of computing gratuity.

If your employer in your new contract of employment has stated that your first four years of employment with the Company before resignation would be taken into consideration for purposes of computing your gratuity, you will have the right to claim gratuity for the 1st four years as well.

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Can father sell house and property after gifting same to the son?

Question: I am a pensioner who is 82 years old. I have gifted my house and property to my son, keeping life interest for me and my wife. I like to know whether I will be able to:

1. Sell the house and property

2. Rent out a portion

3. Lease out a portion of the house.

At present my income is not enough for me to live.

- P. Mithraratne, Kandy

Answer: 1. With regard to your 1st query, the answer is ‘no’. You have no legal right to sell the property.

2. With regard to your 2nd and 3rd queries, as you and your wife are the life interest holders, you can rent out or lease out your house until you and your wife’s death. After the death of both of you, your son will automatically become the legal owner of your property.

If you need further advice, you can visit our Legal Aid Centre in Kandy and our legal officers will help you.

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How to correct name in birth certificate

Question: I am a Year 11 male student of Nath/Dammissara MM Vidyalaya. My birth place is Negombo. My parents have named me as Chakrawarthige Dilshan Sandekelum Fernando. However in my Birth Certificate my name appears as ‘Chakrawarthige Dilshani Sadakelum Fernando, which is a girl’s name.

My correct name should appear as Dilshan. My name in the National Identity Card too is incorrect. In my school the teachers and my friends call me Dilshan and in all my school documents my name has been mentioned as Dilshan.

Please advise me.

- Sadakelum, Naththandiya

Answer: It is advisable to amend the birth certificate rather than amend the National Identity Card. If the Birth Certificate is amended, it will be easy to amend the National Identity Card.

To amend the Birth Certificate you have to meet the Grama Niladhari in your area and get a letter from him regarding the problem in your Birth Certificate. Thereafter your parents have to submit a request letter to the Registrar of Birth and Deaths, Negombo which is your birth place.

The Registrar will issue the relevant form to you for completion. You have to fill this form and submit the same with the letter from the Grama Niladhari and the Principal of your school, bank book, certificates to prove that you are using your name as ‘Dilshan’. This rule applies only to persons who are under 21 years old.

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Whether mentally ill daughter is entitled to get parents’ pension?

Question: My husband and I are retired Government Servants. Our eldest daughter is mentally ill. We want to know whether she is entitled to get my husband’s pension after our death. If so, would you please tell us the necessary action we should follow in this regard.

- A. M. Pathirana

Bandarawela

Answer: Under the Pension Minutes and Circulars your disabled daughter is entitled to get two pensions after the parents’ death until her life time (if both parents are Government Servants). In this regard, you have to request the Pension Department with the photocopy of the Medical Certificates relating to your disabled daughter together with the W & OP number.

Then they will issue an application form to be filled by the parents and forward the same to the Medical Board appointed by the Pensions Department. However, a third party should be kept informed that the disabled child is entitled to a pension after the parents’ death.

If you need further advice in this regard, you may please call over at our Legal Aid Commission, Disabled Unit at No. 129, Hulftsdorp Street, Colombo 12 Tel. No. 2433618, 5335329, 5335281.

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Payment of W & OP to children

Question: I am 36 years old. I am totally disabled as a result of an attack of polio when I was an infant. My parents took me to India for medical treatment several times but it had been of no avail. My father was a teacher in a Government school in Colombo. He died in 1983.

My mother is also a Government Teacher. She retired in 1997. My mother is contributing towards Widows & Orphans Pension continuously. She is drawing her pension and Widows & Orphans Pension. She is now 70 years old. My only sister got married and she is with her husband and child. I have no one to help me and I cannot get married.

Can I claim the pension of my father and mother” If your answer is ‘Yes’ what should I do to obtain pension. Can I now make a claim for pension of my father who died in 1983? I am helpless. Please help me.

- M. Farook,
Mawanella

Answer: The answer is “Yes”. Under the Pension Minutes & Circulars a disabled child is entitled to get pension after the parents’ death until his/her life time. Your age does not matter.

First you have to send a request letter to the Pensions Department via your parents (father or mother) attaching a photocopy of your medical report and the W & OP numbers of your parents.

Then they will issue an application form to be filled by the parents and forward the same to the Medical Board appointed by the Pensions Department. Your information should be included in your parents personal files. You can get your father’s pension after your mother’s death.

After your mother death, you can also get the benefit of her W & OP pension benefits. However, your elder sister is not entitled to your parents pension since she is married. If you cannot attend to this matter alone, we are ready to help you. Please visit our Legal Aid Commission, Disabled Unit at No. 129, Hulftsdorp Street, Colombo 12. Tel. No. 2433618, 5335329, 5335281

Neethi Udana exhibition

The Neethi Udana exhibition will be held in the Uva Province from October 3 to 6. The Legal Aid commission will have an LAC stall where the LAC litigation work and developmental legal aid desks will be explained to the public. Legal publications by the LAC in simple langauge will be available for sale to the public.

Simultaneously from October 3 to 6, eight Legal Aid Clinics will be conducted by LAC lawyers at eight different Divisional Secretariat areas.

On October 4, Legal Awareness Programmes and Workshops will be conducted for public officials in the Badulla district on legal topics of interest to the public.

Legal recovery programme in East

The LAC recently conducted a refresher training of trainers programme to the Tamil speaking Grama Niladhari trainers in the East to recommence the legal empowerment of the poor (LEP) programme in the Eastern province. Soon after tsunami, the LAC conduced three day workshops to GNs covering the tsunami affected villages.

The LAC is supported by the ADB in this training legal empowerment of the grass roots officials.

The subjects include legal recovery of balance tsunami victims and other displaced families, mediation skills in settling disputes, disaster preparedness, fundamental rights and protection and assistance to victims and witnesses of crime.

The LAC has already established Legal Aid Centers in Trincomalee, Batticaloa, Kalumunai and Akkaraipattu. These centers will be supplemented by new centers in Muttur, Kantalai and the Valachchenai courts. The GNs will not only receive intensive training in Sri Lanka humanitarian laws but copies of all the relevant laws would be distributed.

The first three day training will commence in D.S. Divisions of Kuchchaveli and Trincomalee Town and Gravets commencing on October 5.

Quotations from judgements

Judiciary as an elite of service

“You have joined or you are joining that elite - an elite of service, not of social grandeur - and your membership of it can be a source of great personal satisfaction and no little pride.

You will not grow affluent on the remuneration that you will receive; you will work harder and longer than most of your non-judicial friends; your every judicial words and action and some other words and actions as well will be open to public criticism and the public esteem of the judiciary may be eroded by attacks that are both unjustified and unanswered.

But if, at the end of the day, you share with my colleagues whom you highly esteem a sense of service to the community by administering justice according to law, you will have a life of enormous satisfaction. Be of good and honourable heart, and all will be well. You have made a major decision.

On behalf of the institution of the judiciary, I thank you for your commitment. It will be for you, in the fullness of time, to decide whether you have made the right decision. I assume you will find that it was”.

Sir Gerard Brennan, CJ, Australia
‘The Role of the Judge’
National Judicial Orientation Programme, Wollongong,
13 October, 1996
Quoted by A.R.B. Amarasinghe
Judicial Conduct, Ethics and Responsibilities P3

Disclaimer

The answers to the questions are the legal views of individual lawyers and the Legal Aid Commission only compiles them for the Daily News Legal Aid page.

Yours questions should be addressed to - Daily News Legal Aid Page, Chairman, Legal Aid Commission, No. 129, Hulftsdorp Street, Colombo 12.

Email: legalaid.dailynews@yahoo.com

Website: www.lawaid.org

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Compiler: Kalani A Medagoda
Attorney-at-Law